UBA V. Alhaji Ade Olawole (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAAFARU MIKA’ILU. J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State, Holden at Ikom and delivered by Hon. Justice M. O. Eneji on the 2nd day of March 2007.

The facts of this case are that in the year 1997, the 1st Respondent applied for an overdraft of N1,540,000.00 from the appellant to finance a Local Purchase Order (LPO) from the Cross River State Primary Education Board for the purchase and supply of vehicles. A domiciliation of payment was duly executed by the 1st Respondent in favour of the appellant.

It is alleged that after receiving the funds, the 1st Respondent failed to supply the vehicles to the Education Board, thereby frustrating the domiciliation of payment in favour of the appellant. He stopped operating his account with the appellant and diverted all his banking transactions including lodgment of large sums of money to another bank.

When it became obvious to the appellant that the conduct of the 1st respondent had become suspicious, it made a complaint of obtaining money by false pretences and luminal diversion of funds to the 2nd respondent, the Commissioner of Police.

The 1st Respondent was invited by agents of the 2nd respondent and after making his statement to the police, he was released within a period of two hours OF HIS INVITATION. The 1st Respondent instituted this action against the appellant and the 2nd respondent claiming from the appellant the sum of N5m for instigating his arrest and detention and N5m from the 2nd respondent for detaining him over a debt.

The trial of the case was conducted. At the conclusion of the trial the learned trial Judge found for the 1st Respondent and awarded the sum of N1m against the appellant in favour of the plaintiff. The trial Judge held that there was enough evidence to find the 2nd Respondent liable but suo motu struck out the name of the 2nd Respondent on the ground that only the Federal High Court has jurisdiction over the 2nd respondent.

Dissatisfied with the decision of the trial court the appellant filed this appeal. In the appellant’s brief of argument four issues have been formulated for determination. They read as follows:-

1. Whether the lower court had jurisdiction to proceed to judgment against the appellant after holding that only the Federal High Court can adjudicate over the 2nd Respondent?
2. In the light of the decision in FAJEMIROKUN VS. C.B (C.I) NIG LTD (2002) 10 NWLR (pt 774) 95 @ 110; whether the striking of the name of the Commissioner of Police (2nd Respondent) from the suit did not render the action incompetent? (Ground 3).
3. Whether the lower court was right in finding the appellant liable for the arrest and detention of the 1st Respondent by the 2nd Respondent? (Grounds 5 and 8)
4. Whether the damages of N1,000,000.00 and cost of N200,000.00 awarded against the appellant are not Excessive, punitive and unwarranted? (Grounds 6 and 7).

It is to be noted that only the 1st Respondent has filed 1st Respondent’s brief of argument. It contains only response to the arguments on the issues formulated and argued in the appellant’s brief of argument.

The first issue is whether the lower court had jurisdiction to proceed to judgment against the appellant after holding that only the Federal High Court can adjudicate over the 2nd respondent. This issue arises from grounds 1 and 2 of the grounds of appeal. Undoubtedly jurisdiction is the foundation to the sustenance of action and lack of it renders the entire proceedings no matter how well conducted null and void. The ingredients which guide a court of law to determine whether it has jurisdiction or not are as follows:-

1. the court is properly constituted as regards numbers and qualification of its membership;
2. the case comes before the court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. SEE E.F.P. CO. LTD VS. N.D.I.C (2007) 9 NWLR (pt 1039) 216 @ 243; LEAD MERCHANT BANK LTD VS. P.T.F. (2006) 5 NWLR (pt 974) 463; 472. jurisdiction must exist from the time of initiation of action to judgment. Refer to UNILORIN VS. ADENIRAN (2007) 6 NWLR (pt 1031) 498 @ 529; ADISA VS. OYINWOLA (2000) 10 NWLR (pt.674)116.

The appellant raised the issue of jurisdiction in his final address and urged the trial court to strike out the matter on that score on the premise that there was a feature in the case which prevented the court from exercising jurisdiction. The said feature is the joinder of the 2nd respondent as a party in the case given its status as an agent of the Federal Government. The 1st respondent conceded this point in his address at page 27 of the records by merely saying that the police is a nominal party. The court found as a fact that it had no jurisdiction. The trial Judge at pages 38 and 39 of the record stated as follows:-

“However, there is evidence on record to find the 2nd defendant liable to the plaintiff’s claim, I cannot do so on the ground that only the federal High Court is empowered in law with the jurisdiction to entertain the plaintiff’s claim against the 2nd defendant. The 2nd defendant is therefore disjoined from this suit from this suit and his name is struck out’.

The appellant’s counsel has submitted that the above diction of the trial Judge is an admission that from the time of initiation of the suit there was a feature which deprived the trial Judge of jurisdiction to entertain the matter. That the striking out of the name of the 2nd respondent suo motu was nothing but a feeble attempt by the court to invest jurisdiction on itself where there was clearly none. A court is not hungry after jurisdiction and it is the duty of a Judge to expouse jurisdiction and not to expand it. Refer to AFRICAN NEWSPAPER OR NIGERIA LTD VS. NIGERIA (1985) 2 NWLR (pt 6) 137 @ 159-160.

The appellant counsel has submitted that a court cannot suo motu strike out the name of a party in a suit in order to confer itself with jurisdiction. That this is even exacerbated by the fact that the striking out was at the stage of judgment. The learned counsel raked as to what then becomes of the pleadings and testimony against the second respondent. That can the court perform surgery to extricate and separate the facts that have to do with the 2nd respondent? And if that is done would there be facts left to find the appellant liable?